COVID-19 Update: What Victorian Employers Need To Know About Mandatory Vaccinations.

The Victorian Government’s most recent announcement has understandably left most Victorian businesses puzzled about what their obligations and responsibilities are regarding vaccinations in the workplace.

Employers should be clear on their obligations and what they need to do.

Current legal requirement regarding COVID-19 vaccinations

Following the Premier’s 1 October 2021 announcement, as well as the construction industry, healthcare and education industries all authorised workers must now be vaccinated.

A list of the authorised workers can be found here.

The vaccination deadlines differ for each industry slightly. We outline these further below. Essentially the deadlines loom either November or December this year for the second vaccination.

What does this mean for business affected by the mandate?

Business owners should stay up to date with any new information as this is a rapidly changing area of law. You will need to advise your staff of their requirement to be vaccinated. This may raise some difficult conversations with people who are not wanting to be vaccinated.

All workers must provide their employers with evidence that they:

1. have a medical exemption to not be vaccinate;
2. proof of booking before the first dose deadline (in some industries); or
3. have had either the first dose and/or second dose of an approved COVID-19 vaccination.

Employers are required to collect and maintain details of all their workers COVID-19 vaccination records. This includes any medical exemptions for workers who are unvaccinated. These records must be always up to date and readily available.

If employers do not maintain the proper vaccination records for workers, those workers will be treated as unvaccinated workers. They will not be permitted to enter a work premises or worksite.

It is only in very limited circumstances, where either a worker has an authorized exemption, or a medical exemption. Without an exemption all workers for which the mandate applies must be vaccinated.

What if workers refuse to be vaccinated?

The burden to mandate vaccinations in the workplace falls heavily in the arms of employers. Employers must take reasonable steps to prevent the entry of any unvaccinated workers (subject to those with a valid exemption), from entering a work premises, construction site, education, health or aged care facility.

If a worker refuses to be vaccinated it may be reasonable to either stand down the worker until he or she is vaccinated or, in some cases dismiss the worker.

Unfortunately, workers are not prevented from making a discrimination claim or an unfair dismissal claim. However, in industries where the vaccine has been mandated, requesting workers to be vaccinated is a lawful direction. In other industries, for example, hospitality and retail, where the vaccine has not yet been made mandatory, it is likely to be considered reasonable to request workers who are public facing to be vaccinated.

In these circumstances, a discrimination or unfair dismissal claim made by a worker arising out of a request or direction to be vaccination it is unlikely to succeed.

Circumstances may change if the mandate is successfully challenged at Fair Work or via the courts.

What if employers allow unvaccinated workers to continue working?

Having unvaccinated workers continue to work could trigger a workers compensation claim and/or a breach of occupational health and safety laws. Particularly across industries where the vaccine has been mandatory. Having unvaccinated workers on a work premises presents a significant risk of liability on the business and/or the employer, hence the mandate.

Certain workplaces such as abattoirs and building sites in Victoria have already been hotspots for the virus.

Is the employer liable if a worker has an adverse reaction to the vaccine?

The fear of liability of directing workers to be vaccinated looms heavily across Victorian businesses.

To mitigate the burden of liability, the Federal Government has implemented a COVID-19 Vaccine Claims Scheme (COVID Scheme). The COVID Scheme works to compensate anyone suffering moderate to severe side effects following a COVID-19 vaccination.

From 6 September 2021, any person who has received a COVID-19 approved vaccination dating back to as early as February 2021 and suffered loss following the vaccination exceeding $5,000 will be covered by the COVID Scheme.

While the COVID Scheme does not prevent workers from lodging workers compensation claims, it offers employers some form of protection.

In essence, the COVID Scheme means that if workers suffer adverse side effects from an approved COVID-19 vaccination, as the employer you will face little to no liability (depending on the circumstances), for mandating or encouraging workers to be vaccinated.

If you need advice on employment law.

We can assist you with:

1. assisting you with drafting or reviewing correspondence to your workforce directing/requesting them to be vaccinated;
2. managing difficult situations with workers who are refusing to be vaccinated and minimise the risk of a claim arising out of directing or encouraging your workers to be vaccinated;
3. understanding your obligations to collect and maintain vaccination records;
4. understanding what it means to take “reasonable steps” to prevent entry of unvaccinated workers from being onsite;
5. assisting you in deciding whether it is reasonable for you to request your workers to vaccinated (in industries where it is not yet mandated);
6. general advice regarding compliance with COVID-19 occupational health and safety and managing communications at the workplace level about how to implement a COVID-19 safe workplace; and
7. advice on any issues or investigations that arise with Worksafe regarding compliance.

Please do not hesitate to contact our employment lawyers for assistance.

Employers should be careful they are acting within the law. This can be difficult when the law is new and changing rapidly.

Our employment lawyers are skilled in assisting employers and can give you quick advice on how to approach these thorny employment issues.

Speak to a lawyer on 1300 907 335 or complete an online enquiry form and we will contact you promptly.